The Repatriation of Competencies After Brexit: Justice and Home Affairs

One of the areas of devolved competence that may be affected significantly by Brexit is Justice and Home Affairs (JHA). In this blog post, Professor Stephen Tierney explores the repatriation of JHA competences and the implications for devolution. This coincides with the publication of a new research briefing by Tierney and Remond, produced as part of a UK in a Changing Europe project. The report is an output of the CCC's project exploring Brexit's implications for devolution, and reflects upon the contributions of a range of participants at a workshop held at the Centre on Constitutional Change in June 2018, including from the civil service, the solicitors’ profession, the bar and the academy.

When the European Communities were founded, JHA was seen as the preserve of Member States: an integral dimension of national sovereignty. But cross-border cooperation has always been important, as reflected in the Brussels Convention 1973 which established rules on jurisdiction and enforcement of civil court judgments. A move towards more formal cooperation in criminal matters came with the Schengen Agreement, signed in 1985, but this only applied to its signatory states.

Building upon the Treaty of European Union/ Maastricht treaty (‘TEU’) of 1992 which introduced the intergovernmental ‘Justice and Home Affairs’ (third) pillar to the EU’s treaty architecture and the Treaty of Amsterdam (1999) which moved the Schengen system more fully under the umbrella of the EU’s legal framework, giving the EU jurisdiction over border controls, asylum, immigration and related areas of civil law, the Treaty of Lisbon (entering into force in 2009) marked the latest significant step. This moved areas such as judicial cooperation in criminal matters and police cooperation into the JHA ‘pillar’, and effectively made the whole JHA system a mainstream part of EU law, subject to the EU court system and scrutiny by the European Parliament. Lisbon set the wheels in motion for deep integration across the JHA (sometimes referred to as the EU’s Area of Freedom, Security and Justice or AFSJ) area and now provides the main framework both for EU jurisdiction and for further member state cooperation.

Justice and Home Affairs (JHA), with its two dimensions - civil justice, and police and criminal justice (PCJ) - is now widely framed to include border controls, immigration and asylum.

The cross-border dimension of civil justice cooperation across the EU is extensive. The main areas include rules on ‘conflict of laws’ and the jurisdiction of courts in civil matters, mutually agreed rules that allow for the reciprocal enforcement of court judgments across jurisdictions, family law where it involves cross-border issues such as transnational custody or children and agreements on immigration such as the ‘Common European Asylum System’.

In terms of policing and criminal justice, cooperation involves the activities of shared institutions such as Europol and Eurojust, mutual recognition by Member States of one another’s judicial decisions (as with civil law), issuance and enforcement of European Arrest Warrants, freezing or confiscating of property related to criminal enterprises between states, the exchange of information on criminal suspects, and agreements on substantive law where crimes are cross-jurisdictional, including rules on appropriate penalties for money laundering. There are agreements which also cover the rights of the accused, setting standards on procedural rights which are more detailed than those provided for by, for example, the European Convention on Human Rights.

Generally the UK has sought to exempt itself from systematic moves towards closer EU cooperation on JHA, preferring to select specific areas in which it seeks to build formal links with EU partners. A consequence of the opt-in option offered by both the Amsterdam and Lisbon treaties is that the UK’s involvement in justice and related matters (covering both civil and PCJ matters) has grown steadily, albeit on a largely de facto basis, in recent years.

Currently, the UK participation in the field of police cooperation and judicial cooperation in criminal matters covers: cooperation between Member states authorities, information and data exchange, European agencies/bodies membership, and procedural harmonisation over specific criminal offences.

Devolution is a significant factor, largely due to Scotland’s independent legal system. Scottish and British governments cooperate in the field of justice and internal security through formal and informal intergovernmental channels. While foreign policy is clearly a UK reserved matter, there is a memorandum of understanding between the British and Scottish Governments that includes a Concordat on the Co-ordination of EU policy. Scottish Ministers can give their input where there are particular Scottish interests at stake. There is also a Scottish Representation Office in Brussels to voice Scottish interest in the EU arena.

It is not yet clear what impact Brexit will have upon the UK’s relationship with the EU in the area of JHA and therefore upon devolved institutions, particularly in Scotland. Much remains unclear because as yet we do not know what the terms of the UK’s withdrawal from the EU will be. The first point to consider is timescales. Three dates are relevant: Brexit day itself on 29 March 2019; the end the proposed transition agreement (31 December 2020), and the commencement of any new relationship agreement(s).

There seems to be the political will across the EU – as reflected in the agreement reached in December 2017 – for continuity in arrangements during the transition period which could mean no significant change in the current UK arrangements in relation to JHA until the end of 2020 at least. The crucial issue therefore will be the terms of new relationship between the UK and the EU which would take effect at the end of the transition period. Different options exist: an agreement which would in effect preserve JHA arrangements as they stand; a more selective agreement, preserving some areas of agreement but not others; or a more radical form of withdrawal which would see the loss of cooperation across a range of areas.

The impact of Brexit upon devolution also remains unclear. Some matters are currently reserved and will revert to UK level. Matters become much more complicated when we consider the nature of the relationship between existing devolved competences and those areas of EU jurisdiction which fall in whole or in part within devolved areas. The EU (Withdrawal) Act 2018 will govern the reallocation of returning EU competences, and much will remain to be worked through by way of intergovernmental relations in consequence of this act, through the creation and maintenance of common frameworks.

There was general agreement in the course of the Workshop that the UK has cooperated well with the EU on JHA issues, and that this has also worked effectively in the devolution context. Cooperation has been smooth particularly in the civil sphere and on conflict of laws matters. These tend not to be high level political issues, but rather are matters that work out jurisdictionally. It is anticipated that this level of judicial cooperation across jurisdictions should be able to continue relatively unproblematically after Brexit.

Other areas are likely to prove more difficult. One potentially tricky area is enforcement which raises the issue of forum shopping: one question that cannot be answered as yet is whether the UK will continue to be seen as a safe enforcement sector. Economic issues will no doubt play a role in how litigants address this issue.

Other specific areas could raise problems. On the European Arrest Warrant, the prospect of Brexit is already being used in extradition cases to suggest that uncertainty threatens the rights of accused persons. If agreements are not put in place for continued cooperation, then issues of trust could affect cooperation in relation to arrests and transfer of prisoners. Human rights issues could also feed into actions which seek to resist arrest warrant enforcement or extradition.

Other areas where new agreements will be needed include asset control/confiscation of assets/anti-money laundering provisions. Again there will be a need to seek replication of EU-wide regimes. This will include mutual agreement on penalty levels to reflect existing agreements among EU member states.

One sticking point could be information sharing because states cannot rely only on informal relations here. There will need to be a continuation of agreements if this is to work properly. Police agencies have explained how much they depend upon information sharing arrangements. There is no precedent for non-EU states to be part of data sharing systems in the criminal justice area, so again new agreements will be needed.

One difficult issue is that information sharing tends to be enforced by the CJEU, so again agreement on mutual enforcement would most likely also be needed to make up for the lack of an agreed final arbiter.

At the moment the areas of cooperation/enforcement at EU level tend to be procedural rather than substantive in criminal justice. But the longer term trajectory is not clear. One complication would be if the EU begins to move into areas of more substantive agreement/EU competence within the civil or criminal law sphere. If it does, what implications would this have for third countries like the UK? What scope would exist for cooperation by third countries? Would the UK want to be part of this? Could it do so on a case by case basis?

Devolution raises other particular questions. There are policy areas within EU competence where differences already apply across the UK. One is procurement. After Brexit, there is a risk that more than one procurement regime operating at UK level will make the policy sector very complex internally while also complicating the terms of any new agreements with the EU.

The asymmetry of UK devolution will also be a significant factor, particularly as Wales edges closer to the possibility of its own jurisdiction. The Workshop discussed how this could serve to complicate internal justice arrangements and in particular new general or bilateral agreements at the European level.

The impact of the European Union (Legal Continuity) (Scotland) Bill, is as yet uncertain, its legality currently under consideration by the UK Supreme Court. If it found to be wholly or even partially lawful, then a crucial issue will be its interaction with the UK Withdrawal Act regime. Significant questions remain about where the boundaries between reserved and devolved competence will lie; the status of the Sewel convention; judicial interpretation of the respective powers of the centre/devolved governments etc.

Will further changes to the devolution statutes be needed depending upon the terms of any exit agreement or of a new relationship agreement(s)? Matters of EU competence are currently policed by the devolution statutes, but these will increasingly become matters of international relations. This will also have an impact on levels of scrutiny, and a broader question is how the UK Parliament and the devolved legislatures will seek to scrutinise new international agreements.

A related matter is how the devolved institutions will use their powers under the Withdrawal Act, and how the different governments interact to achieve common policies and common frameworks in the JHA area in matters of both civil and criminal jurisdiction.

Many of the powers that will be used to give effect to Brexit are secondary legislation powers which are not subject to the Sewel convention. This leaves a potential consent/accountability gap. How will this be filled?

Legislation is likely to become more complex at both central and devolved areas because in addition to the traditional reserved powers model, the changes that come with the Withdrawal Act will require a second layer of competence analysis.

A challenge will now be laid down for the devolved legislatures in terms of scrutiny of their own governments. Are there sufficient resources properly to police the wide range of powers coming back from the EU and the strong executive powers which the devolved administrations have to adapt and use these powers?

It was pointed out that the manner in which the UK Withdrawal Act has been passed has seriously fractured relations between the Scottish and UK governments, and so at the political level there is a need to rebuild political relations. More broadly the system of intergovernmental cooperation needs to be improved.

Another issue is what role the devolved territories will play in negotiations on exit and on the UK’s new relationship and any other treaties that flow from this. International relations is a reserved matter so there is no constitutionally guaranteed role for the devolved administrations. Much again will depend upon the health of intergovernmental relations.

Scotland has played a key role in European law reform in the conflict of laws area, also providing expertise for law reform in other countries. How will this continue? Will there be scope for the institutions of the Scottish legal system to continue with their own bilateral arrangements with European partners?

One final reflection was whether there is now a need to formalise the constitution to take account of Brexit. There is no doubt that UK membership of the EU has had a profound impact upon the UK’s constitution. It may be that a consequence of Brexit, in order to manage the return of powers in the context of the Scotland Act 2016 and Wales Act 2017, is a move towards a more formalised system of ‘shared rule’ in the form of intergovernmental relations.

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